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Resident Evil: The Chicago Way

(Author’s Note: I wrote this article for the Huffington Post after the Illinois Appellate Court had ordered Rahm Emanuel off the Chicago mayoral ballot and before the Illinois Supreme Court had decided whether to take the case. I’m happy to note that my prediction in this article came true.)

We can debate whether election laws should impose residency requirements on candidates, like the one-year requirement that applies to the Chicago mayoral race and Rahm Emanuel. Some would say, who cares if a candidate just recently moved to the jurisdiction—let the voters factor that in when they cast their ballots. Others claim that a tangible connection to the locale should be a critical prerequisite to the right to run for elected office in that jurisdiction.

But public policy is for law schools. When you run for office in Chicago, you put on your flak jacket.

Illinois law requires that a Chicago mayoral candidate must “reside in” Chicago for one year preceding the mayoral election. The moment that Mr. Emanuel filed his candidacy papers, a stampede of challengers lined up to test his eligibility under this law.

Nobody really doubts that Mr. Emanuel is, in his heart, a Chicagoan. He lived in Chicago and served in Congress from Chicago until January, 2009, when he resigned to become President Obama’s Chief of Staff. And few people seriously contest that Mr. Emanuel intended to return to Chicago one day—after all, he’d said as much to friends, and he had leased, not sold, his Chicago home, where he continued to store many prized personal and family possessions.

To Mr. Emanuel’s legal team, those two facts essentially ended the debate. Having a permanent residence plus an intent to return to that residence one day, they argued, was all that was necessary to satisfy the legal requirement that Mr. Emanuel “resided” in Chicago for one year prior to the mayoral election. After a lengthy and rather chaotic evidentiary hearing involving many challengers to Mr. Emanuel’s candidacy, Chicago’s election board determined that Mr. Emanuel did, in fact, intend to return to his Chicago home and had not abandoned that residence. Based on several court decisions dating back to the 1800s, held the election board, these facts were sufficient to allow Mr. Emanuel to run for mayor.

But a bitterly divided appellate court in Chicago saw the issue differently. Mr. Emanuel’s intent to return to Chicago, held the 2-judge majority, was irrelevant. The requirement to “reside in” Chicago for the year preceding the election meant to actuallylive in Chicago, which Mr. Emanuel obviously did not do. Even more interestingly, the majority opinion compared statutes concerning residency requirements for voters against those for candidates—both of which statutes use a variation of the word “reside”—and found that Mr. Emanuel did have a “residence” in Chicago for the purpose of being qualified to vote in Chicago but did not “reside in” Chicago for the purpose of being a candidate. In other words, the majority concluded that Mr. Emanuel is a qualified resident of Chicago to vote in the upcoming mayoral election but is not a qualified resident to run in that election.

Was the majority opinion correct? It depends on whom you ask. The majority opinion dove into great detail to support its position, while the stinging opinion of the dissenting judge complained that the majority was asking the wrong questions altogether. Right or wrong, it is fair to say that the majority’s opinion was a novel interpretation of Illinois election law on the issue of candidate residency requirements.

Next up? Emanuel’s lawyers are appealing to the Illinois Supreme Court and asking that court to stop the printing of the Chicago mayoral ballots—which at the moment would not include Mr. Emanuel’s name—until the high court resolves the issue. The smart money says that the high court will take the case. Given that this is the first “real” mayoral election in the state’s largest city in a generation, and with the eligibility of the prohibitive front-runner hanging in the balance, this case is probably too big for the high court to ignore.

But predicting the outcome of that appeal? You might as well predict the weather in Chicago this April.

David Ellis, an award-winning novelist and former election lawyer, was the Impeachment Prosecutor who convicted Governor Rod Blagojevich before the Illinois Senate in 2009. His new novel of political corruption, BREACH OF TRUST, is available for pre-order today.